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SUMMARY: The term cultivar is an abbreviation of the English words cultivated and variety. Numerous cultivars have been created of cereal grains, fruit, vegetables, industrial plants, ornamental plants and forest trees. New products or new cultivars are sold on the market for profit. Protection of the cultivar as intellectual property right ensures a part of the profit goes to the innovator, i.e. the plant breeder. A cultivar can be in the form of a clone or in the form of improved seed, and therefore two characteristic strategies are deployed: protection of the intellectual property rights of the plant breeder (Plant Breeder’s Right, PBR) and protection of the commercial name (Trade Mark, TM).
Key words: Cultivar, Plant Breeder’s Right, Trade Mark, Strategy
The term cultivar is an abbreviation of two English words cultivated and variety. Vidaković (1993), Vidaković and Franjić (2001) and Fehr (1993) define cultivar in a similar manner, as a group of plants containing the uniform and desired characteristics, by which that group of plants differs from the species (or cultivar) from which it is developed. Cultivar can be propagated by vegetative means or from improved seed.
In the history numerous cultivars of cereals, fruit, vegetables, industrial plants, ornamentals and forest trees have been developed. The appearance of a new cultivar is in fact a product of the intellect of a plant breeder. Similarly to other industrial innovations they are the product of the intelligence of an innovator. The intellectual work comprised in the new product becomes intellectual property only after attaining legal protection. The new products or new cultivars are sold on the market for profit, and legal protection of intellectual property right ensures that the innovator, or breeder, receives part of the profit.
Dubois (2001) explains that the Treaty of Paris of 1883 protects industrial property and the term ‘industrial property right’ was used. From 1967 new term, ‘intellectual property right’ was used, and with legal attainment of this right the products of human intellect were protected against unauthorized exploitation. The need for protection of intellectual property rights for cultivars propagated by vegetative means was first recognized in the USA with Plant Patent Act of 1932. Fehr (1993) reports and interprets this American law in more detail.
Subsequently, in 1938, the association ASSINSEL (Association Internationale Des Selectionneurs Professionnels Pour La Protection Des Obtentions Vegetales) was founded in Nyon, Switzerland.
ASSINSEL was predominant in the organization of the UPOV Convention in 1961 in Paris. UPOV is an abbreviated French term for the Convention Union pour la Protection des Obtentions Vegetales, which was revised in 1972, 1973 and 1991. According to European Council Regulation (EC) number 2100/94 of 27 July 1994 a system for the protection of intellectual property rights for breeders was founded, which was based on the UPOV Convention. The system is administered by the Community plant Variety Office (CPVO), explained Dubois (2001).
Thus, in EC, the legislator, on the request of plant breeder, and in order to create a new cultivar, grants the intellectual property right that is valid on the territory of the member countries.
PLANT BREEDERS AS INNOVATORS AND NURSERYMEN AS PRODUCERS
A certificate on the protection of intellectual property rights for a new cultivar ensures for the plant breeder the protected right to produce and sale of an unlimited amount of specimens of a new cultivar on a defined territory, and the right to transfer the production and/or sale for the whole or part of the market to another party by agreement on cession of the license (Idžojtić, 2008, Fehr, 1993 and Dubois, 2001).
On concluding an agreement on the taking over of a license the nurseryman becomes an authorized producer. Agreement on cession or taking over of a license defines: the annual amount of plant production, the territory on which the plants will be sold, the time period for which the agreement is valid and the amount of money which the plant breeder will receive after sale of the plants. That part of the money that goes to the plant breeder is included in the price of the product, which in the English language is known as royalty.
Segers (2001) stresses that the aim of the plant breeder, when making new cultivar, is to achieve improvement that will be recognized by the buyer and the producer. The buyer recognizes the quality and price in relation to similar products that already exist on the market. The producer usually merely compares the costs of production in relation to similar products that are already produced.
Dielman (2001) from the Belgium Association of nurserymen explains the experience and opinion of Belgium nurserymen on protected cultivars of ornamentals, mentioning the increased prices on the market of protected cultivars of roses compared to non-protected, the method of informing buyers of new cultivars, experience of plant breeding and cultivation of azaleas, and other aspects of intellectual property rights on the market.
It is of interest to note that Dielman (2001) states that intellectual property right for new cultivars exists only because of the need of plant breeders, and that many nurserymen still do not recognize the advantage of authorized production of cultivars that are protected as intellectual properties.
STRATEGIES OF THE INTELLECTUAL PROPERTY RIGHTS OF THE PLANT BREEDER
Theory and practice of rights as a science, in the field of intellectual property rights, is comprehensive and offers the possibility of creativity when considering strategy for each new product. Therefore, the two strategies given here should only be understood as two ideas.
If a new cultivar is propagated by vegetative means production and sale of the plants and payment of royalty take place at the nursery. The production of the plants and their sale the plant breeder must control, by the conclusion of an agreement on cession of the license.
If the specimens of the new cultivar can be propagated from hybrid seed then the plant breeder produces improved seed, during sale of the seed royalty is paid, and production of the plants and their sale do not have to be supervised by the plant breeder.
In accordance with the manner in which the cultivar is propagated two basic strategies arise with regard to the protection of intellectual property right of the plant breeder.
THE STRATEGY OF PROTECTION OF INTELLECTUAL PROPERTY RIGHTS FOR CULTIVAR PRODUCED BY VEGETATIVE MEANS
Segers (2001) explains the specificity of breeding ornamentals and the possibilities that exceptionally great variability of hybrid progeny is achieved, and production by vegetative means for commercial use most frequently becomes the only option, due to the fact that uniformity of the product is desired. Thus, the author emphasizes the need for a new ornamental cultivar to be a clone. In order to achieve intellectual property right for a cultivar (clone) European plant breeders most frequently opt for Plant Breeder’s Right (PBR). PBR for a cultivar of fruit, grape or ornamental tree and bush is granted for the name and clone as a whole for a period of 30 years, after which protection cannot be extended.
With regard to the production by vegetative means unauthorized production can be started by anyone, as soon as the specimens of the new clone (cultivar) appear on sale. In that case a plant breeder can by agreement or legal action request compensation from an illegal producer.
One example from history, among realized technical patents, containing the same practical principle was a little rotating lever, the can opener, often seen on old fashioned shoe polish cans, which was patented in this form. It is easy to copy it and to start own production. But before appeared on the market rotating lever had been patented and production without license had become illegal.
In order to charge royalty the plant breeder concludes an agreement with the producer on the cession of the license. For example, an agreement on the cession of a license defines the right of production for a period of 10 years and the producer guarantees annual production and sale of 20,000 plants for a defined territory, and to pay the plant breeder 0.60 Euro for each plant sold up until the end of each calendar year, otherwise the producer loses the right to the license. Thus the nurseryman acquires the right to production and sale of the new product without competition and can form a higher price and better profit, while at the same time is exposed to pressure in order to achieve the agreed amount of production and sale as well as to pay the plant breeder and retain the license.
Usually the nurseryman and plant breeder first conclude an agreement on trial production. During the trial production the nurseryman and plant breeder have the possibility of assessing the costs of production, observing the reaction of the buyer to the new product and more accurately assess the annual amount of plants which could be produced in the future.
Gioia (2001) explains methods and models for protection of intellectual property right of the plant breeder and also strategy for retaining exclusive right to production and assigning the license to others.
THE STRATEGY OF PROTECTION OF INTELLECTUAL PROPERTY RIGHTS FOR CULTIVARS PRODUCED BY GENERATIVE MEANS
Trade Mark is a means of protecting intellectual property right that is granted for name, protective mark or logo, and not for the product to which the name refers. It is granted for a period of 10 years with the possibility of renewal for a further period of 10 years. Such a protected Trade Mark can last forever.
This form of protection is favorable for protection of the name of a new cultivar that is produced from hybrid seed, in view of the fact that only the plant breeder possesses the parental stock plants or know-how for production. In this way unauthorized production is impossible, and a similar product is impossible to legally sell under the known name due to the fact that the name is protected.
Hybrid cereal seed is frequently protected in this way, and would also be most favorable for the protection of improved seed of forest tree species.
A good example among realized protections was and still is very known name, Coca Cola, that was protected in this form containing the same practical model. Only inventor knows the recipe for production of the refreshing drink. So, nobody can produce the drink. Commercial name (Trade Mark) was protected and no other drinks can be legally produced or sold under protected name.
DISCUSSION AND CONCLUSION
Discussions on plant breeding of ornamentals and the financial expectations of such activity consider various concepts. Baudoin (2007) put forward the idea of establishing workplaces and profit by the production and export of ornamentals to developing countries. The author emphasizes the advantages of undeveloped compared to developed countries with regard to the natural biodiversity of exotic plants, which represents an irreplaceable resource for the creation of new cultivars. At the same time Baudoin (2007) stresses that the FAO is in a unique position to initiate and supervise a World Plan for the Protection and Sustainable Development of Plant Genetic Resources for Food and Agriculture. The aforementioned World Plan was approved in 1996 among 150 member countries.
The aim of intellectual property rights is the realization of profit. Assessing the supply and demand for ornamentals Cadic & Widehem (2001) state that the world market for cut flowers grows annually by 6 to 9%. Total sales in 1985 were estimated at 13 billion Euros, and in 2001 were expected to reach 37 billion Euros. Trends are similar for ornamentals in pots where sales for 1985 were estimated at 12.5 billion Euros, and in 2000 sales reached 23.5 billion Euros.
Europe and the USA have long been the richest and most developed market. The existence of intellectual property rights, as an area within the framework of judicial science, enables the author and producers of a new cultivar production and sale, without competition, on the territory of a large market, as well as profit and security of investment in the breeding of plants and nursery production.
With regard to the possibility of creating new cultivars in only two ways: in the form of clones or in the form of improved seed, two practical strategies are clearly recognizable for the protection of intellectual property rights of the plant breeder. One strategy of protection of a cultivar propagated by vegetative means (Plant Breeder’s Right – PBR) and the strategy of protection of the name of the product (Trade Mark) for a cultivar propagated by improved seed.
- Baudoin, O. 2007. Floriculture for Food Security. Acta Horticulturae 743: 25-32.
- Cadic, A., Widehem, C. 2001. Breeding Goals For New Ornamentals. Acta Horticulturae 552: 75-86.
- Dielman, P. 2001. The Growers Viev On Novelty Protection. Acta Horticulturae 552: 237-241.
- Dubois, L., 2001. Intelektual Property Rights on Plants With Special Reference to Vegetatively Propagated Ornamentals. Acta Horticulturae 552: 207-214.
- Fehr, W. 1993. Principles of Cultivar Development. Ames: Walter Fehr Department of Agronomy Iova State University.
- Gioia, V. 2001. Managing Trademarks And Plant Variety Protection Of Ornamentals For Profit. Acta Horticulturae 552: 225-236
- Idžojtić, M. 2008. Prvi patentirani hrvatski kultivari alepskoga i crnoga bora Pinus halepensis ‘Lucia’ i P. nigra ‘Lara’. Šum. list 132, 1-2: 74-75
- Segers, Th., A. 2001. How to Breed Ornamentals? Acta Horticulturae 552: 15-21,
- Vidaković, M., Franjić, J. 2004. Golosjemenjače. Zagreb: Šumarski fakultet Sveučilišta u Zagrebu.
- Vidaković, M. 1993. Četinjače. Zagreb: Grafički Zavod Hrvatske.